DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

NELSON ERVIN,

Appellee.

No. 4D19-626

[March 18, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Andrew L. Siegel, Judge; L.T. Case No. 18-

003737CF10A.

Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, 

Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Claire Victoria Madill, 

Assistant Public Defender, West Palm Beach, for appellee.

KUNTZ, J.

The State appeals the circuit court’s order withholding adjudication

on Nelson Ervin’s no contest plea to a first degree felony. We agree the 

court erred in withholding adjudication. But, at the time of sentencing, 

the State did not object to the court withholding adjudication. So we 

affirm.

i. Background

Ervin pleaded no contest to armed burglary of a dwelling, a first

degree felony; two counts of dealing in stolen property, second degree 

felonies; and two counts of false ownership information to a pawn broker, 

third degree felonies.

On the day of sentencing, Ervin’s Criminal Punishment Code 

scoresheet listed the primary offense as armed burglary of a dwelling, a 

first degree felony. The scoresheet listed another case under “additional 

offenses” and listed one count of burglary of a dwelling, three counts of 
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dealing in stolen property, and two counts of false ownership information 

to pawn an item. The scoresheet showed the lowest permissible prison 

sentence was 78 months.

At sentencing, Ervin’s counsel asked the court to withhold

adjudication, explaining that the victim did not want to “see this young 

man convicted.” Ervin’s counsel indicated the State was “up in the air 

about whether or not adjudication should be withheld.” Consistent with 

that message, the prosecutor told the court: “Just as far as the withhold, 

judge, can or can[’]t withhold on that so that’s the State’s position.”

The court withheld adjudication on all five counts.

ii. Analysis

On appeal, the State argues the court was barred from withholding 

adjudication on one count because of Ervin’s plea to a first degree felony. 

The State is correct. 

The controlling statute specifically states that “the court may not 

withhold adjudication of guilt upon the defendant for: (a) Any capital, life, 

or first degree felony offense.” § 775.08435(1)(a), Fla. Stat. (2019). 

Based on the statute, it is reversible error for a court to withhold 

adjudication on first degree felony convictions. See State v. Foster, 114 

So. 3d 422, 422 (Fla. 5th DCA 2013).

Had the State raised the objection, and had the court still withheld 

adjudication, we would be compelled to reverse. But, at most, the State 

was ambivalent and failed to contemporaneously object. See, e.g., Castor 

v. State, 365 So. 2d 701, 703 (Fla. 1978); State v. Rivera, 249 So. 3d 

1314, 1316 (Fla. 5th DCA 2018) (citing Jackson v. State, 983 So. 2d 562, 

568 (Fla. 2008)).

Based on the State’s failure to object, we can reverse only if the error 

is fundamental. And we have previously rejected an argument that 

improperly withholding adjudication is fundamental error. State v. 

Calvert, 15 So. 3d 946, 949 (Fla. 4th DCA 2009) (citing State v. 

Ackerman, 785 So. 2d 1229, 1231 (Fla. 4th DCA 2001)).

iii. Conclusion

The State’s failure to contemporaneously object at sentencing, and its

near acquiescence to Ervin’s request that the judge withhold 

adjudication, require us to affirm the court’s ruling.
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Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.